{UAH} Arkansas carries out first execution since 2005 after Supreme Court denies stay requests
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Arkansas late Thursday night carried out the state's first execution in more than a decade after the U.S. Supreme Court, in a last-minute series of orders, rejected requests by a death-row inmate to stay his lethal injection.
The execution followed a wave of criticism and tumult in Arkansas, which had set an unprecedented scheduled of executions, plans that were imperiled by a series of court orders halting at least some of the eight lethal injections originally set for April.
As part of its aggressive scheduling, Arkansas had planned to carry out back-to-back executions on Thursday night at a state prison southeast of Little Rock. But that was abandoned when a state court blocked one of those lethal injections, and officials instead focused solely on plans to execute Ledell Lee, 51, by lethal injection.
[Arkansas courts had blocked one execution, prohibited use of lethal injection drug]
Lee was sentenced to death in 1995 for the killing of Debra Reese, who was beaten to death in her home two years earlier. According to court petitions and his attorneys, Lee has long denied involvement in Reese's death, and he was seeking DNA testing to try and prove his innocence.
His execution was reported by the Associated Press, which had a reporter serving as a media witness.
Appeals filed by Lee's attorneys hoping to delay his execution were rejected by U.S. Court of Appeals for the 8th Circuit after that court briefly stayed the lethal injection. He also petitioned the U.S. Supreme Court, not long after justices on Thursday night denied other stay requests filed by several Arkansas death-row inmates. Lee filed a volley of appeals at the high court seeking a stay of execution, saying that technology exists now that could verify his innocence and arguing that he has an intellectual disability that should prevent his execution.
None Ledell Lee. (Arkansas Department of Correction via AP) "It is inappropriate for the state to rush to execute before a defendant's innocence claim can be properly examined," Nina Morrison, a lawyer with the Innocence Project and an attorney for Lee, said in a statement Thursday.
The Supreme Court ultimately denied his stay requests in orders released by the court just before 11:30 p.m. at the Arkansas prison, following an hours-long delay imposed by Justice Samuel A. Alito Jr. so the high court could review the inmate's appeals.
Alito, who is assigned cases from the federal circuit covering Arkansas, then issued an order delaying Lee's lethal injection "pending further order of the undersigned or of the Court." He vacated his order after the justices declined all of the requests.
According to the orders, Alito referred the stay requests to the court, which denied them all without explanation. No justices logged dissents, though some had earlier Thursday said they would have granted stay requests from Lee and other inmates.
[With lethal injection drugs expiring, Arkansas plans unprecedented seven executions in 11 days]
Arkansas officials and death-row inmates have been battling in state and federal courts over the state's compressed execution timeframe as well as its planned lethal-injection procedure. Earlier this year, Gov. Asa Hutchinson (R) scheduled eight executions over 11 days in April, a pace unmatched for the modern American death penalty. Hutchinson said that it was not his preference, but that it is necessary because one of the state's lethal-injection drugs will expire at the end of the month.
Arkansas Gov. Asa Hutchinson answers questions at the state Capitol in Little Rock, Ark., on Wednesday. (AP Photo/Danny Johnston) Arkansas Gov. Asa Hutchinson. (Danny Johnston/AP) Arkansas officials defended the schedule, saying they have no guarantee of obtaining new lethal-injection drugs due to an ongoing shortage and have to carry out the death sentences of eight men convicted of capital murder. Death-row inmates, their attorneys and civil-liberties advocates have criticized the frantic pace, with former corrections officials joining them in saying they worry that it heightens the odds of a mistake.
Several death-row inmates in Arkansas, including Lee, appealed to the U.S. Supreme Court to stay the executions, but the justices earlier Thursday night released orders denying these requests. This marked the first time Justice Neil M. Gorsuch, who joined the court earlier this month, voted to create a conservative majority. In one of the orders, the court was split 5-4, with Gorsuch joining the majority in denying the stay and the court's four liberal members saying they would have granted it.
Gorsuch's first #scotus vote is to join conservative majority denying stay of execution to Arkansas inmate
— Robert Barnes (@scotusreporter) April 21, 2017
Justice Stephen G. Breyer, who has previously questioned the "arbitrary" nature of the death penalty's implementation, authored a critical dissent of Arkansas' stated desire to carry out executions before its drugs expire.
"I have previously noted the arbitrariness with which executions are carried out in this country," he wrote. "And I have pointed out how the arbitrary nature of the death penalty system, as presently administered, runs contrary to the very purpose of a 'rule of law.' The cases now before us reinforce that point."
As the court battling over the executions has continued, both Arkansas and the state's death-row inmates have won key victories in court. By Thursday night, Arkansas appeared to have given up on at least four of the planned eight executions for this month after they were blocked by courts. After the Arkansas Supreme Court stayed one of the two executions set for Thursday night, a spokesman for the state's attorney general said there were "no plans to appeal further at this time."
On Monday night, the state's first two planned executions were also blocked by the Arkansas Supreme Court, and the U.S. Supreme Court rejected a request to allow Arkansas to proceed with one of them; state officials said that as a result, they did not expect to carry out either execution this month. Another execution, originally scheduled for next week, was previously halted by a federal judge after a parole board said it would recommend changing that inmate's sentence to life in prison.
Once the executions Monday were stayed, Arkansas shifted its focus to the other lethal injections on the schedule, beginning with two set for Thursday. But court orders issued Wednesday threatened to derail the state's plans. The Arkansas Supreme Court blocked one execution planned for Thursday, while a state circuit court judge issued a broader order temporarily prohibiting the state from using one of its three lethal-injection drugs due to complaints from the distributor.
Arkansas successfully appealed to the state Supreme Court on Thursday to allow them to use that lethal injection drug, removing what officials had described as a de facto stay on any executions taking place this month.
The state has faced criticism from drug companies unhappy that their products may be used in executions. Two companies filed a brief last week asking a federal judge to block the use of their drugs, which include midazolam, a commonly-used sedative that has prompted controversy when utilized in executions; state officials say their stock of the drug expire April 30.
McKesson, the country's largest drug distributor, went further, seeking to block the state from using vecuronium bromide, another drug, and accusing Arkansas of obtaining it under false pretenses. A state circuit judge issued an order prohibiting Arkansas from using this drug in executions, where it is used as a paralytic.
Arkansas Attorney General Leslie Rutledge (R) filed an appeal with the Arkansas Supreme Court seeking to have that order stayed, a request that was granted Thursday afternoon, just hours before the first execution was set to begin.
In a statement Thursday evening, McKesson expressed disappointment with the decision but said it would no longer seek court orders keeping its drug from being used.
"We believe we have done all we can do at this time to recover our product," the company said. "We are disappointed that the Arkansas Supreme Court has held our favorable injunction ruling in abeyance and delayed further scheduling in our case."
According to McKesson, the Arkansas Department of Corrections deceived the company to purchase the drug, promised to return it and was given a refund — only to reverse course, refuse to hand over the drug and keep the refund. A spokesman for the Arkansas Department of Corrections declined to comment on McKesson's claims, but the state argued in court filings that the company "willingly sold a drug … and then experienced seller's remorse."
McKesson has previously sought and won a similar order blocking the state from using the vecuronium bromide. Another state judge granted such an order last week, but he was quickly criticized by Rutledge and others for attending a death-penalty protest the same day and was removed from the case by the Arkansas Supreme Court, which vacated his order.
Also on Wednesday, the Arkansas Supreme Court issued an order staying one of the two executions set for Thursday night. The court, in a narrow 4-to-3 decision, blocked the execution of Stacey E. Johnson, 47, who has been on death row since 1994 and was facing execution Thursday night.
The court offered no explanation for the order, saying only that Johnson should be allowed to press on with his motion for post-conviction DNA testing. Johnson was sentenced to death for the murder of Carol Jean Heath, a woman brutally killed in her home. The same court rejected Rutledge's request Thursday to rescind the order and let the execution occur or to issue an order explaining their decision.
"I am both surprised and disappointed at the last minute stay by the Arkansas Supreme Court," Hutchinson said in a statement. "When I set the dates, I knew there could be delays in one or more of the cases, but I expected the courts to allow the juries' sentences to be carried out since each case had been reviewed multiple times by the Arkansas Supreme Court, which affirmed the guilt of each."
Nina Morrison, the lawyer with the Innocence Project, said the group was "grateful and relieved" with the decision to stay the execution.
In a statement discussing Lee's case, Morrison said attorneys argued that he deserves DNA testing because of "a significant amount of DNA evidence that has never been tested which could exonerate Mr. Lee and identify the real perpetrator of the crime."
Three state justices dissented from the decision to stay Johnson's execution. All three joined in a dissent saying the stay in this case "gives uncertainty to any case ever truly being final in the Arkansas Supreme Court." Hutchinson pointed to the dissents and said he knows "families of the victims are anxious for a clear-cut explanation from the majority as to how they came to this conclusion and how there appears to be no end to the court's review."
Rutledge also criticized the state court, saying it had "unanimously rejected an identical argument" from the same inmate in 2004. She appealed to the same court on Thursday afternoon, asking them to withdraw the stay or at least give an explanation for why it was issued, but this was rebuffed by the court, though three justices said they would have granted her motion.
"I know that this is disappointing and difficult for Carol Heath's family and her two children who were home at the time of the murder," Rutledge said. She pledged to try and "ensure that justice is carried out."
Another execution scheduled this month in another state was also halted Thursday. Virginia Gov. Terry McAuliffe (D) commuted the death sentence of Ivan Teleguz, a 38-year-old man set to be executed next week after the murder-for-hire of his former girlfriend.
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